SMITH and WESTERN AUSTRALIAN PLANNING COMMISSION
[2005] WASAT 166
•8 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SMITH and WESTERN AUSTRALIAN PLANNING COMMISSION [2005] WASAT 166
MEMBER: MS M CONNOR (MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 8 JULY 2005
FILE NO/S: RD 327 of 2005
BETWEEN: RA & JS SMITH
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent
Catchwords:
Town planning - Two lot subdivision - Battleaxe configuration - Variation below "Minimum Site Area" requirements of the Residential Design Codes - Density of development in the locality - Substantial merits
Legislation:
Metropolitan Regional Scheme
Residential Design Codes
Shire of Kalamunda District Planning Scheme No 2
State Administrative Tribunal Act 2004 (WA), s 29(5)(b), s 82(1)
Town Planning and Development Act 1928 (WA), s 5AA, s 20, s 24(5), s 26(1)(a)(i), s 61(1)(a)
Result:
Application for review is allowed
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Aspen Pty Ltd v State Planning Commission, unreported; WATPAT (RJM Anderson QC, Chairman, PB Arney, Member, CJ Ozturk, Deputy Member); No 13 of 1988; 21 October 1988
Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4
Kyrwood v Western Australian Planning Commission [2002] WATPAT 15
Marshall v WA Planning Commission (1985) 12 SR(WA) 170
Milne v Western Australian Planning Commission [2003] WATPAT 1
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Robin Anthony Smith and Jill Smith (the "applicants") are the registered proprietor of Lot 25 (No 12) Millson Road, Maida Vale, more particularly described as Lot 25 on Diagram 30243 comprised in Certificate of Title Vol 1287 Folio 534 ("the subject land"). Lot 25 is 3827 square metres in area and has a 42.69 metre frontage to Millson Road.
The applicants made application to the Western Australian Planning Commission (the "respondent") on 14 May 2004 for approval to subdivide the subject land to create two freehold title lots in a "battleaxe" configuration. The proposal entails creating a lot, 1900 square metre in area with a 38.9 metre frontage to Millson Road that encompasses the existing dwelling and a battleaxe lot, 1927 square metres in area incorporating a 4 metre wide access leg.
The respondent refused the application on 2 August 2004 stating the following reasons:
"1.The Commission is not prepared to approve the subdivision as the resultant lot sizes would be below the minimum indicated by the Local Government's Town Planning Scheme.
2.The proposed subdivision does not comply with the Commission's Policy DC2.2, Residential Subdivision, a provision of Statement of Planning Policy No. 1 – State Planning Framework Policy, by reason of the proposed lots being below the minimum site area requirements for single houses under the 'R 5' Code.
3.The proposed subdivision would create lot(s) in an area where the Commission has been advised that on-site effluent disposal would not be satisfactory in the long term and which is not serviced by reticulated sewerage. This would be contrary to the Government Sewerage Policy for the Perth Metropolitan Region.
4.Approval to the subdivision would set an undesirable precedent for other similar subdivisions in the locality."
The applicants elected to request the respondent to reconsider its decision in accordance with the provisions of s 24(5) of the Town Planning and Development Act 1928 (WA) (the "Act"). The respondent, in a letter dated 20 December 2004, reiterated its previous decision to refuse the application stating that:
"…the grounds for refusal with respect to the proposal being contrary to the Shire of Kalamunda District Planning Scheme No 2, the Residential Design Codes and the Commission’s Policy DC2.2 Residential Subdivision still remain."
The applicants, on 8 February 2005, made application under s 26(1)(a)(i) of the Act to have the decision reviewed.
Subject land
The subject land is located in the Darling Range foothills locality of Maida Vale. Millson Road is a cul‑de‑sac with entry via Lillian Road.
Lot 25 is relatively level and the soils on site consist mainly of a sandy topsoil overlaying gravely, sandy clays. Development of the subject land has been contained to the front half of the lot and includes buildings comprising a residence, a dental laboratory and garage (all brick construction). There are two driveways, one to the south‑west of the dwelling servicing a car parking area and the second, to the north‑east of the dwelling servicing a garage and the rear of the lot.
According to the applicants, extensive garden areas have been developed on the front section of the land that are reticulated from a bore sited near the Millson Road frontage. The rear portion of the lot has been used as a horse paddock and is "an attractive, largely cleared area with a perimeter of trees and shrubs".
Legislative Framework
The subject land is zoned "Urban" in the Metropolitan Region Scheme ("MRS") and "Residential" with a permitted site density of "R 5" under the Shire of Kalamunda District Planning Scheme No 2 ("DPS 2").
The respondent has prepared a number of planning documents for the purpose of exercising the power of the Commission under s 20 of the Act.
Statement of Planning Policy No 1 – State Planning Framework Policy ("SPP1") unites existing State and regional policies, strategies and guidelines with a central framework to provide a context for decision-making on land use, subdivision and development in Western Australia. The Policy has been formulated under s 5AA of the Act and as such, the Tribunal is required to have "due regard" to the provision within the Policy in making decisions on planning matters: see s 61(1)(a) of the Act.
The State planning framework includes Statements of Planning Policy prepared by the Commission under s 5AA of the Act as well as regional strategies, regional and sub-regional structure plans, strategic policies and operational policies prepared from time to time and endorsed by the Commission. The relevant policies listed in the State Planning Framework, relied on by the respondent, to guide decision-making in this instance include:
•Statement of Planning Policy (3.1) Residential Design Codes (2002) ("Design Codes");
•Policy No DC1.1 Subdivision of Land ‑ General Principles; ("Policy No DC1.1") and
•Policy No DC2.2 Residential Subdivision ("Policy No DC2.2")
Policy No DC1.1 sets out the general principles for determining applications for the subdivision of land which include:
•to control the subdivision of land within the framework of the relevant legislation and regulations;
•to ensure that all lots created have regard to the provisions of the relevant local government town planning scheme;
•to ensure the subdivision pattern is responsive to the characteristics of the site and the local planning context; and
•to ensure that the subdivision is consistent with orderly and proper planning and the character of the area.
Policy No DC2.2 sets out the Commission's policy requirements for the subdivision of land into residential lots. Clause 3.2.1 provides that,
"Generally, the minimum lot size and frontage requirements of the relevant code will form the basis for the subdivision of residential land".
In this instance, the relevant code, as designated in DPS 2 for this lot, is R5. "Element 1 ‑ Housing Density" ("Element 1") and "Table 1 ‑ General Site Requirements" ("Table 1") of the Design Codes establishes the "Minimum Site Area" requirements for each density code and specifies criteria where variations to minimum and average site area requirements for single houses may be applied. It is noted that Table 1 does not include average lot size requirements for "Low Density" codes R 2, R 2.5 or R 5.
Compliance with the "Minimum Site Area" requirements as set out in Table 1 is deemed to meet the relevant performance criteria for Element 1. Column 3 of Table 1 specifies a minimum site area per dwelling and for areas coded R5, the minimum site area is 2000 square metres. The proposed subdivision is non-compliant with this requirement.
The "Minimum Site Area" requirements as stipulated in Column 3 of Table 1 are not subject to variation except as set out under cl 3.1.3 of the Design Codes. This clause establishes the criteria where variations may be considered, and are set out as follows:
"•be no more than 5 per cent less in area than that specified on Table 1; and
•facilitate the protection of an environmental or heritage feature; or
•facilitate the development of lots with separate and sufficient frontage to more than one public street; or
•overcome a special or unusual limitation on the development of the land imposed by its size, shape or other feature; or
•allow land to be development with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed;
•or achieve specific objectives of the local government Scheme and, where applicable, the Local Planning Strategy."
In addition, cl 3.2.3 of Policy No DC2.2 specifies the criteria for consideration of variations to lot sizes for Single Houses below the Minimum Site Area requirements prescribed in Table 1 of the Design Codes. The following provisions pertain to minimum lot size:
"Site Area Variation to the Minimum and Average Lot Size
For Single Houses…
•the minimum lot size variation only applies to one lot in the subdivision;
•the variation reduces the area of that one lot by no more than 5 per cent of the minimum area specified in Table 1 or elsewhere in the R‑Codes;
•the variation has been demonstrated by the applicant to have a particular beneficial outcome for the community, or the Commission forms the opinion that it will have a particular beneficial outcome for the community."
Clause 3.6.5 of Policy No DC2.2 also states that:
"the Commission will not permit reductions in the minimum and average lots sizes set by the Residential Design Codes in respect of battleaxe subdivisions."
Planning Scheme Requirements
Clause 6.1(c) of DPS 2 requires that unless otherwise provided in the scheme the development of land for any of the residential purposes dealt with by the Design Codes is to conform to the provisions of those Codes. A variation clause was inserted into the Scheme under cl 6.2(d) which provides for the approval of an application to develop a single house on land designated R 2, R 2.5, R 5, R 10 or R 12.5 which does not comply with the requirement of minimum area of land per dwelling. The provisions of DPS 2 are not an impediment to subdivision.
Respondent's position
The respondent opposed the subdivision application on the basis that:
a)the proposed lots do not meet the minimum lot size requirement of 2000 square metres under the R 5 code assigned to the land pursuant to DPS 2. The proposed subdivision would result in the creation of proposed Lot 1 being 5 per cent below the 2000 square metre requirement assigned to the land under the Design Codes and proposed Lot 2 being 3.6 per cent below the requirement. The applicants have not demonstrated how the application satisfies any of the additional criteria contained in cl 3.1.3 of the Design Codes;
b)the application does not meet the criteria established under cl 3.2.3 of Policy No DC2.2 and is therefore inconsistent with this policy;
c)the proposed subdivision is inconsistent with cl 3.6.5 of Policy No DC2.2;
d)the proposed subdivision does not accord with the general principles used by the respondent in the determination of subdivision applications; and
e)approval of the application would be inconsistent with the established subdivision pattern in Millson Road as the proposed subdivision would create the only battleaxe lot in Millson Road. This would create a precedent for the subdivision of adjoining land and other lots of a similar size in the locality.
The respondent argued that the Design Codes are a "Statement of Planning Policy" made under s 5AA of the Act and as such the Tribunal is required to have 'due regard' to the provisions contained within the policy in making decisions on planning matters. The respondent cited a number of decisions of the Town Planning Appeal Tribunal about the weight to be accorded to the Design Codes: Kyrwood v Western Australian Planning Commission [2002] WATPAT 15; Milne v Western Australian Planning Commission [2003] WATPAT 1; Dalla Riva (Australia) Pty Ltd v Town of Vincent [2004] WATPAT 4. The respondent accepted that the performance criteria contained in cl 3.1.3 permits the creation of lots with an area less than the specified minimum site area requirement as contained in Table 1, provided that the lots are no more than 5 per cent less in area than the minimum requirement and the proposed variation accomplishes at least one of the five objectives set out in the performance criteria.
The respondent contended that although the average site area of the proposed lots is less than 5 per cent below the minimum requirement, the application does not meet any of the five performance criteria contained in cl 3.1.3. The respondent also asserted that that the proposal is inconsistent with cl 3.2.3 of Policy No DC2.2 as it proposes to vary the minimum lot size of both lots and the applicants have not sufficiently demonstrated that the proposed variations to the minimum site area would result in a beneficial outcome for the community.
The respondent also argued that the battleaxe configuration of the proposed subdivision is not consistent with the prevailing subdivision pattern in the area. It maintained that this form of subdivision is undesirable, as it will create a precedent for the approval of undersized lots in a battleaxe configuration. The resultant effect being an increase in the creation of battleaxe lots, detracting from the amenity and existing character of the area.
Applicants' position
The applicants have owned and resided on the subject land for almost forty years. According to the documents, the applicants have always being mindful of the subdivision potential of the lot and have contained development to the front half of the land intending at some appropriate time in the future to apply for subdivision. The applicants' grounds for review are as follows:
The proposed subdivision:
a)is consistent with the lot size pattern in the area.
b)will not result in any environmental impacts;
c)will not impact on the amenity of the surrounding area;
d)is consistent with the zoning and falls within 5 per cent variation permitted under the Design Codes and in particular, meets the following criterion specified in cl 3.1.3"
"allow land to be developed with housing of the same type and form as land in the vicinity and which would not otherwise be able to be developed;"
e)is consistent with the respondent's Policy No DC1.3 and Planning Bulletin No 33; and
f)has considerable merit and will not set an undesirable precedent.
The applicants acknowledged that the proposed lots would be slightly below the "Minimum Site Area" requirement as specified for the R5 density code. However, the applicants contended that the majority of lots in the street have areas of less than the minimum requirement, asserting that 72 per cent of the 18 lots with frontage to Millson Road are in fact below the minimum size. A plan of the current land subdivision abutting Millson Road was provided to show the prevailing pattern in the street. Of the 18 lots fronting Millson Road, four lots have areas of 1900 square metres, three lots have areas of between 1900 and 1908 square metres and six lots have areas ranging between 1921 to 1964 square metres. Given this, the applicants maintained that the proposed subdivision would create a density of development consistent with that in the immediate area. The applicants further asserted that the proposed subdivision was consistent with density of development in the locality, which supports residential lots of approximately 1900 square metres. A plan showing the lots size in the surrounding area was provided as evidence.
The applicants also acknowledged that there are no other battleaxe lots in the immediate area. Mr Bain, a planning consultant engaged by the applicants to give evidence on their behalf, contended that the resultant development will be far superior than the development pattern that has occurred in the locality (that being, long narrow lots with dwellings being located at the front of the lots, in close proximity) as the proposed subdivision will create two regular shaped lots with sufficient space around them. Mr Bain asserted that the proposed lots conformed with the width to depth ratio recommended in respondent's Policy No DC2.2. He calculated that the ratio of the proposed subdivision is 1:1.35 and the ratio of a subdivision splitting the property down the middle would be 1:5. He did not see the creation of a battleaxe subdivision in a street where there are no other battleaxe lots as creating a precedent for two reasons. First, there is only one other lot in the street that has not been subdivided, and second, citing Mr Anderson QC (as he was then) in Aspen Pty Ltd v State Planning Commission, unreported; WATPAT (RJM Anderson QC, Chairman, PB Arney, Member, CJ Ozturk, Deputy Member); No 13 of 1988; 21 October 1988.
"The precedent argument is not usually treated by this Tribunal as a 'stand alone' argument. It is a consideration, but if there is no other reason why a development should not occur, the fact that it may tend to result in other application being made for similar kinds of development, should not be a reason why the appeal should be dismissed."
Mr Bain, in his evidence, asserted that the proposed lots do not exceed the maximum 5 per cent reduction as permitted under cl 3.1.3 P1 of the Design Codes and argued that the proposed subdivision accorded with four of the five additional criteria specified in the clause. Mr Bain further acknowledged that the Design Codes do not specify a minimum lot area for rear battleaxe lots for R2, R2.5 and R5 density codes. He considered that in this instance, the battleaxe leg component of the rear lot has little or no impact on the effective size of the land and is not a relevant consideration.
Planning issues
In this case, what the applicants seek is a departure from the limitations contained in Table 1 of the Design Codes. The proposed lot sizes require variation to the minimum site area requirements as specified under Table 1. This is a fact agreed by both parties.
The applicants' position is that the proposed subdivision satisfies the performance criteria contained in cl 3.1.3 P1 of the Design Codes and based on the substantial merit of the case, the application should be approved.
The respondent does not concede this point and argues there is no scope for varying the minimum site area under cl 3.1.3 as the proposal, except for the proposed lots not being more than 5 per cent less in area than that specified on Table 1, does not fulfil any of the other five specific planning criteria specified in cl 3.1.3. Furthermore, cl 3.6.5 of Policy No DC 2.2 provides that no reductions to the minimum site area requirements as set out in the Design Codes be permitted for a subdivision which proposed in a battleaxe configuration. The respondent does not consider there to be any planning justification for reducing the minimum site area and no compelling reason for a departure from policy.
The Design Codes are a statement of planning policy made under s 5AA of the Act, and the Tribunal, under s 61 of the Act, is to have due regard to it in the determination of this application. This Tribunal reiterates the importance of the Design Codes as a policy to which the greatest weight should be accorded, however, but that does not mean to the exclusion of other considerations. As articulated in Marshall v WA Planning Commission (1985) 12 SR(WA) 170, the Design Codes do not of themselves govern the outcome of an application for subdivision.
The Town Planning Appeal Tribunal ("WATPAT") previously observed that the structure of the Design Codes involves consideration of first, the objective, second, performance criteria, and, third, acceptable development. WATPAT further considered in Dalla Riva (Australia) Pty Ltd v Town of Vincent (supra) whether there is a further over-arching discretion in relation to the determination of planning approval, which would permit a greater or different departure from Table 1 to that permitted under cl 3.1.3. WATPAT in answer to this question found as follows:
"Can it be said that to permit a departure by a further 2 square metres would be inconsistent with the objective "to ensure a residential development occurs in line with community expectations of both type and density". The answer, in my view, must be no. That could not in itself be said to defeat compliance with that objective. If that, therefore, is the first or primary aim then that must of itself permit a degree of departure or variation provided such departure or variation is not otherwise inconsistent or at variance with the Codes themselves."
The objective of Element 1 – Housing Density Requirements is:
"To ensure that residential development occurs in line with community expectations about its type and density."
In considering the proposed lots in context of the immediate area (figure 6 of annexure SJB2 of Mr Bain's witness statement) and the wider surrounding locality (annexure SJB8 of Mr Bain's witness statement) it is clear that the area of the proposed lots is consistent with the community expectations about density. From the cadastral map it can be observed that in this particular locality there is a preponderance of lots range in size between 1800 square metres to 2300 square metres. There are lots within this area that are larger in area and may be subject to further subdivision, but generally given the density coding of the area there will be little pressure for further subdivision of the majority of lots in this locality. The creation of an additional two lots of approximately 1900 square metres is not going to result in the de facto recoding of the area and will not prejudice the orderly and proper planning of the area. The approval of this subdivision will allow the subject land to be developed at a density comparable to the surrounding land, which can be read as an intent of the fifth dot point contained in cl 3.1.3 of the Design Codes.
The Tribunal is of the view that although there are no other battle-axe lots within Millson Road, the proposed configuration of the lots is not likely to pose a serious threat to the character of the established residential area and is considered to be an acceptable form of subdivision in this instance. The proposed lots are also physically capable of development for their intended purpose.
The Tribunal is cognisant of the planning framework that has been established to provide a context for decision-making on the subdivision of residential land and does not consider the proposed subdivision to be contrary to the general principles ensconced in this policy framework. Given the substantial merits of this particular case, the Tribunal is satisfied that the proposed subdivision would be consistent with the planning objectives and expectations for the area and that the orderly and proper planning for the locality would not be jeopardised by the approval of this subdivision application.
For the foregoing reasons, the orders of the Tribunal are as follows:
1.The application for review is allowed.
2.The subdivision application lodged with the respondent on 14 May 2004 is approved subject to any such reasonable conditions to be imposed either as a result of the parties' agreement, or by determination of the Tribunal, in accordance with O 4.
3.Pursuant to s 29(5)(b) and s 82(1) of the State Administrative Tribunal Act 2004 (WA), O 1 and O 2 do not come into effect until such time as the conditions referred to in O 2 are finalized, at which time the Tribunal will provide a consolidated order setting out all of the conditions of approval.
4.The matter is listed for a half‑day hearing, commencing at 10 am on 5 August 2005 for the conditions of approval to be argued, unless the parties file a Minute of Consent Orders setting out the conditions to be imposed prior to this date.
5.The respondent is to file with the Tribunal and serve on the applicant a draft list of conditions it wishes to impose by 22 July 2005.
6.The applicant is to file with the Tribunal and serve on the respondent a statement identifying any of the draft conditions which it objects to, stating briefly the reason for each objection by 29 July 2005.
I certify that this and the preceding [39] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS M CONNOR, MEMBER
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